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Is there any Constitutional precedent for the claim that it is or is not within the rights or duties of the office of the President of the United States or of Congress to grant, to deny, or to suspend military aid, including any financial aid that may be used in part on military operations?

Clearly I do not mean that the President and Congress jointly have no power to deliver aid, to form alliances, or to reinforce and engage in military actions in cooperation with the allies of the United States during a time of declared war--certainly those activities are within the purview of the Constitutional charter of those bodies. I refer instead to the arbitrary disbursal of aid to foreign countries by the US when the US is not actively engaged in war against mutual enemies of said countries.

Congress has power to declare war, while the President is designated as the commander in chief of the military and may engage in treaties with the consent of two thirds of the senate. No explicit mention justifying foreign aid outside of these bounds seems to have been made or intended by the writers of the Constitution.

According to the Founding Fathers, a key to the United States' sovereignty and security is the strict avoidance of "permanent/entangling alliances" and of over-involvement in foreign sympathies and antagonisms. To engage in any sort of foreign aid (as has become routine for the past many years and presidents) that is not directly tied to US security seems directly contrary to this doctrine, and unsupported Constitutionally.

From General Washington:

The great rule of conduct for us, in regard to foreign nations, is in extending our commercial relations, to have with them as little political connection as possible. Europe has a set of primary interests, which to us have none, or a very remote relation. Hence she must be engaged in frequent controversies the causes of which are essentially foreign to our concerns. Hence, therefore, it must be unwise in us to implicate ourselves, by artificial ties, in the ordinary vicissitudes of her politics, or the ordinary combinations and collisions of her friendships or enmities ... it is our true policy to steer clear of permanent alliances with any portion of the foreign world; so far, I mean, as we are now at liberty to do it; for let me not be understood as capable of patronizing infidelity to existing engagements. (George Washington's Farewell Address, emphasis added)

Thus it would seem that we have no business lending aid or picking sides in foreign conflicts except as those conflicts directly affect the safety of American citizens.

The Constitution itself seems to make the designation of optative military aid on the part of a US government body to a foreign country either forbidden implicitly by the ninth and tenth amendments restricting the functions of government to those explicitly defined, or rather in a Constitutional limbo between Congress and the President, but in any case allowable only as clearly defending US national interests, with the following important and clear restriction:

Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. (Article III, Section 3 of the U.S. Constitution)

Hence, where is the Constitutional justification for any claim that it is within the rights of a US government body to dispense, suspend, or discontinue foreign aid generally, and especially when the US has not declared war?

Furthermore, whence do such activities derive their budgetary legitimacy?

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    Why would you imagine that the government wouldn't have the ability to do this? While a great speech, Washington's Farewell Address is clearly not binding in any way and his advice was largely almost immediately, most notably his warnings against political parties – divibisan Dec 11 '19 at 18:35
  • @divibisan For example, see the quoted section on the subject of treason, and also the express limitation of federal powers in the amendments. Clearly the status of a foreign power as either a de facto or a declared enemy makes the game of foreign aid very dangerous and ill-advised, especially in the absence of a well-known (preferably declared) conflict against a common enemy. It simply seems that without a clear and commensurate justification in favor of the security of US citizens, such aid would by default be unconstitutional and in certain cases perhaps even treasonous. – pygosceles Dec 11 '19 at 18:43
  • Comments deleted. Please don't use comments for political debates or to answer the question. The primary purpose of comments should be to improve the question. For more information on how comments should be used, please review the help center article about the commenting privilege. – Philipp Dec 14 '19 at 12:00
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Based on Article 1, Section 1. Which gives the legislative power to the Congress, that is the right to pen laws for the appropriation and distribution of these funds as they see fit.

All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.

And Article 1, Section 8 in the General Welfare and Necessary and Proper Clauses which give the Congress this broad authority more specifically.

The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States; ... and

To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.

And Article 1 Section 9 that limits Congress has no such prohibition.

  • Interesting. I am looking specifically at the phrases used to limit the power and purposes of taxation. The scope of taxes is to provide for the common defence and general welfare of the United States, and to pay off existing debts. Clause 7 in Article 1 Section 8 also specifies post offices and post roads. It seems that so long as the funds are used within this scope, they are Constitutional. This would make foreign aid have to qualify either as common defence or general welfare budget. Do you have anything to tease out the tension or ambiguity relative to the executive branch? – pygosceles Dec 20 '19 at 0:09
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Military aid is certainly not treasonous except in the absurd case in which the US is at war with the recipient of the military aid.

Congress has the constitutional power to

provide for the common Defence and general Welfare of the United States;

Furthermore, congress has the power

To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.

The president has the power

by and with the Advice and Consent of the Senate, to make Treaties.

Military aid in the context of a senate-ratified treaty is certainly constitutional. In the absence of a treaty, congress can in any event appropriate foreign military aid if it is deemed to contribute to the "common defence" or "general welfare" of the US.

According to the Founding Fathers, a key to the United States' sovereignty and security is the strict avoidance of "permanent/entangling alliances" and of over-involvement in foreign sympathies and antagonisms.

Such avoidance is not explicit in the constitution. Washington's statement of policy on that subject has no force of law.

The Constitution itself seems to make the designation of optative military aid on the part of a US government body to a foreign country either forbidden implicitly by the ninth and tenth amendments...

To the extent that the 9th and 10th amendments might apply, it would be necessary to show that foreign military aid should be a right of the people or of the states. It's not possible to reconcile that proposition with the constitution's clear designation of foreign relations as a matter for the federal government. In particular, the constitution forbids states from "enter[ing] into any Treaty, Alliance, or Confederation."

...or rather in a Constitutional limbo between Congress and the President...

It's not clear to me how that would be the case other than by virtue of the checks and balances between the two branches, which apply to all laws and executive acts.

...but in any case allowable only as clearly defending US national interests...

To whom must it be clear? If congress appropriates the aid and the president signs the appropriation bill into law, that should imply that they believe the aid is in the US national interest.

...with the following important and clear restriction:

Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort.

Indeed. Nobody in their right mind, however, would give aid to an enemy. In criminal law, it is well established that an "enemy" must be one with whom the US is at war (or effectively so). It cannot therefore be treasonous to give aid to a country or other party with which the US is not at war.

  • Exactly right. If you add the Article 1, Section 9 not having this prohibition, this would be perfect. – K Dog Dec 16 '19 at 20:06
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    They key point, I think, is that the President cannot spend any money not appropriated by Congress. Whether the President can or cannot spend money for military aid (or for war, for that matter) depends upon the existence of a Congressional appropriation for that purpose. – ohwilleke Dec 16 '19 at 20:13
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    @ohwilleke Congress acts first, obviously, but oftentimes in these deals there are wide latitudes for conditions that have to be met that the President or the Admin decides have been met. And other administrative powers for management and release of the aid. – K Dog Dec 16 '19 at 20:21
  • "provide for the common Defence and general Welfare of the United States;" is really out of context "The Congress shall have Power to lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States." – lazarusL Dec 16 '19 at 20:28
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    @phoog Story's conclusion is no longer good law and hasn't been since the Lochner era (1905-1937) ended. en.wikipedia.org/wiki/Lochner_v._New_York – ohwilleke Dec 17 '19 at 20:22
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There are multiple reasons why the aid maybe given.

The Constitution authorizes letters "of marque." The modern equivalent of that would be hiring private military contractors.

The Constitution makes the setting of the foreign policy to be the exclusive domain of the President of the United States. Congress cannot negotiate with foreign powers. Only the President and his agents can. This makes it outside of the domain of Congress to provide foreign aid. But, as part of the process of deal-making with foreign powers, a President can expand resources of the United States.

However, Congress has the power of the purse. So any funds which are expanded by a President must be first authorized by Congress. Even if the funds are authorized by law (and a President does not veto the law), the executive branch still has discretion on whether to spend those funds because the executive has the exclusive domain over the foreign policy.

Congress cannot pass a law mandating that funds be spent (whether a President approves of it or not) on foreign policy initiatives. Such a law would undermine a President's prerogative to tweak the foreign policy. This prerogative is essential to being able to respond to events as they arise.

As a result of these restrictions, foreign aid is authorized by Congress and then disbursed by the executive branch. It may be disbursed to foreign nations or to foreign private groups which support US interests abroad.

The idea that such funds can only be spend narrowly simply doesn't fly. For example, the Louisiana purchase involved paying funds to France for the territory which is now an integral part of the United States. This was not an expenditure undertaken out of some imperative emergency. It was an expenditure undertaken for the benefit of the long term interest of the United States.

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The Founding Fathers were cradling a baby nation and making decisions that would keep it from getting itself killed. The decision not to be a permanent ally to anybody was in large part because we had no leverage to keep the other nation from screwing us over when it was convenient for them. I'm not sure they ever expected that the USA would someday become the most powerful nation on earth.

But now that we are the biggest guy on the block with a whole lot of wealth and a low appetite for close-to-home war, we hand out money to other nations to incentivize fixing their own problems so we don't end up having to deal with them. We don't give money to South American dictators because we're nice or stupid. We give it to them because if we start getting a crapload of refugees from that country because the dictator allowed a civil war to start, the money train will stop. We give money to Ukraine because we made a treaty to protect them, and because it would make the NATO/EU all kinds of twitchy if Russia invaded Ukraine, and then we might be forced to actually put people on the ground to fight Russia. It is so much easier to just hand them money for them to buy missiles from USA companies (here's where the graft is) than to allow something like that to play out.

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